Tennessee v. Madden, No. M2012-02473-CCA-R3-CD (Tenn. Crim. App., March 11, 2014), involves a second degree murder prosecution in which the defendant was a Middle Tennessee State University ("MTSU") student and the victim was a member of the MTSU women's basketball team. During the case, the defendant moved to recuse the judge presiding because that judge had a "substantial and material connection" to MTSU. Defendant noted the judge had 205 Facebook connections to individuals at MTSU, including with the head women's basketball coach, a witness in the case. Defense counsel said he was not able to affirm whether the judge visited any particular Facebook pages. The judge unfriended "numerous" MTSU connections after counsel filed the recusal motion. The judge stated during the hearing, "[t]o be quite honest I didn't think my Facebook page was public" and that he originally believed defense counsel "hacked into my account or got somebody to pretend to be my friend and went through all that stuff."

The appeals court affirmed the trial judge's denial of the motion to recuse, but not without important comment. First, the appeals court described a heated exchange between the trial judge and the defense attorney that culminated with the judge, "chastis[ing] defense counsel for, among other things, "filing a motion that called into question the people's faith in the judicial system and 'dimishe[d] our entire court system." The court affirmatively stated it did not condone all that transpired below when the record showed defense counsel was merely advocating zealously for his client. The court, however, conclude the "defendant...failed to identify any concrete manner in which she was disadvantaged by any bias on the part of the trial court."

The appellate court added (internal citations omitted):

If the public is to maintain confidence in our system of justice, a litigant myst be afforded the "cold neutrality of an impartial court." The overall tenor of some of the questions asked and statements made by the trial court to defense counsel during the hearing concerning the defendant's recusal motion reveal that the trial judge was upset, perhaps because he felt that defense counsel had violated his privacy by visiting his Facebook page (and the pages of individuals listed as his "friends" on that page). However, the record reflects nothing other than zealous representation on the part of defense counsel.

...When engaging in physical and on-line contact with members of the community...judges must at all times remain conscious of the solemn duties they may later be called upon to perform. Perhaps someday, our courts will follow the lead of Maryland, which has concluded that its judges must accept restrictions on online conduct that might be viewed as burdensome to ordinary citizens and prohibits the "friending" of attorneys and witnesses likely to appear before a judge. In the meantime, judges will perhaps best be served by ignoring any false sense of security created by so-called "privacy settings" and understanding that, in today's world, posting information to Facebook is the very definition of making it public.

One judge concurring noted that a month earlier, the court held that a judge's Facebook friendship with a confidential informant did not require recusal where the record failed to show the length of the Facebook friendship or the extent or nature of their interaction. The concurring judge also wrote, "In this case, although one Facebook 'friendship' was sufficient to scruitinize the judge's impartiality, the record does not demonstrate more than a "virtual" acquaintance between the trial judge and the prospective witness." Judges should strongly consider whether or not such scrutiny is best left uninvited.